
    THOMAS F. McCRAN, ATTORNEY-GENERAL, RESPONDENT, v. BOROUGH OF OCEAN GROVE, IN THE COUNTY OF MONMOUTH, APPELLANT.
    Argued March 2, 1921
    Decided May 12, 1921.
    1. A limitation upon the exercise of the powers conferred upon a municipality by general laws is embraced within the title of an act entitled “An act to incorporate the borough of Ocean Grove, in the county of Monmouth.”
    2. The legislature has the power to change, revoke or modify governmental functions conferred upon a corporation by its charters, and may create a new municipal agency of the state to take over and exercise them.
    3. A grant of partial exemption from taxation, contained in the charter of a corporation, does not confer a right which is vested in the corporation in the sense that it cannot be taken away by subsequent legislation.
    4. Although the constitutional mandate prohibiting the enactment of private, local or special laws regulating the internal affairs of municipalities does not bar the legislature from creating a municipality by a special law, it prohibits it from materially differentiating its new creation from the body of municipalities of the same class in the conferring upon it of governmental powers.
    5. An act is equally special whether it confers upon a single municipality substantial powers in addition to those possessed by other municipalities of the same class; or whether, as to a single municipality, it places substantial restrictions and limitations upon powers conferred while like powers are enjoyed by other municipalities of the class free from such restrictions'and limitations; or whether it confers only some, but not all, of the substantial powers- enjoyed by other municipalities of the same class.
    6. The act to incorporate the borough of Ocean Grove, in the county of Monmouth (Pamph. L. 1920, p. 190), is special legislation regulating the internal affairs of the municipality, and therefore unconstitutional.
    On appeal from the Supreme Court, whose opinion is reported in 95 N. J. L. 379.
    On quo warranto proceedings instituted by the attomet’general.
    
      Eor the appellant, Richard W. Stout, Charles E. CooTc and Edmund Wilson.
    
    Eor the state, ■/. Chester Massinger, Ward Kremer and Robert II. McCarter.
    
   The opinion of the court was delivered by

Gummere, Chief Justice.

The information filed by the attorney-general challenges the constitutionality of an act of the legislature entitled “An act to incorporate the borough of Ocean Grove, in the county of Monmouth,'’’ passed April 5th, 1920. Pamph. L., p. 190. The purpose of this- statute is to establish a borough government in the territory known as Ocean Grove, a seaside resort owned and controlled by a corporation created by a special act of the- legislature entitled “An act to incorporate the Oee-an Grove Camp Meeting Association -of the Methodist Episcopal Church,” approved March 3d, 1870. Pamph. L., p. 397.

The grounds of attack upon the statute, b-oth in the Supreme Court and before us, are- (1) that tile title of the act does not express its object, and is therefore violative of tlie provision of article 4, section 7, subdivision 4, of the constitution of this state, which declares that “To avoid improper influences which may result from intermixing in one and. the same act such things as have no proper relation to each other, every law"shall embrace1 hut one- object, and that shall he expressed in its title;’0 (2) that the act infringes upon and destroys certain vested rights: of the Ocean Grove Camp- Meeting Association!; (3) that thle act violates the provision of subdivision 11 of said section, which prohibits the enactment of special or local laws regulating' the internal affairs of municipalities.

This case was considered of such public importance, not only by counsel, but also by the Supreme Court, that a special session of that tribunal was held for the- purpose of ¡hearing and determining the questions involved; and’ the Supreme Court, in order that a review of its decision might he had by us at our present March term, disposed of the ease upon the third of the grounds presented, considering that, as that ground of attack upon the statute was entirety justified, it was not necessary for it to pass upon, tire other contentions submitted by the attorney-general. That th'e cause is one of considerable public importance is apparent, and as each one of the matters raised by the information is of public interest, and as they have been carefully and thoroughly argued by counsel, we deem it advisable to express the views which we -hold with relation to them.

Taking up the first point argued, namjely, that the title of the statute does not comply with the constitutional requirement. The body of the act, after declaring that the borough created by it shall he a body politic, incorporate in fact and in law, provides that it shall be governed by the general laws of the state relating to boroughs, with certain specified exceptions, among which are (1) that the streets of the borough shall not be used for the purpose of vehicular travel on Sunday, and that gates shall be erected at the entrance to all streets leading within the borough limits for the prevention of suchi travel, wiiic-h gates shall be closed from twelve o’clock Saturday night until midnight of the Sabbath day; and that the borough authorities shall not have power, by ordinance, resolution or otherwise, to encroach upon or ehtange these restrictions as to Sunday travel; and (2) that the borough shall not give, by ordinance, resolution or -otherwise, any authority to build or construct - a state, county or municipal boulevard through any of the territory of the- borough. The argument is that these 'restrictions upon the- power of the governmental body are not expressed in the title of the act. But they are to be read in connection with the general enabling provision, that the newly-created horo-ugh is to he governed by the general laws of the state relating to boroughs, except in the particulars specified. The- general laws referred to vest in the governing body of e-ach of the boroughs of this state the full control over and regulation of the streets and highways of the municipality, including the power to open new streets at its discretion; and a limitation upon the exercise of the powers thus broadly conferred is as fully embraced in the title, of the act as is the conferring of the powers themselves. That a general title is comprehensive enough and specific enough to include the grant of such powers has, 1 think, never been questioned since the decision in Walter v. Town of Union, 33 N. J. L. 350, 354, where it is said, “'The validity of acts with general titles lias been so long recognized by our courts that it cannot now be questioned that under the title ‘An act to incorporate the town of---’ a government for thle town could be established, including taxation for its support, courts for the trial of offenders, authority for laying out streets, building sewers and making assessments. Under any other rule, it would be impossible to organize a city government without a large number of distinct acts:” and that to hold otherwise “would lie to annul a large portion of the legislation of this state.” In our opinion, the statute is not opera to the objection that it violates the constitutional provision, the scope of which we have been considering.

Tiie contention that the act interferes with or destroys certain vested rights, of the Ocean Grove Camp Meeting Association is., in our view, also without merit. The charter of that corporation, by the first section, constitutes it a body corporate and politic. Thle second and third sections authorize it to. purchase and hold such real and personal estate as it may deem necessary or desirable for the purposes and objects of the coiporation; to construct and provide all necessary works to supply the territory acquired by it with water and artificial light: and to provide all other conveniences and make all other improvements which it may deem: necessary or desirable. The fourth, fifth and seventh sections provide for the creation of a board of trustees, which is made self perpetuating, and is given power to pass and enforce such by-laws as it may deem needful and to appoint such peace officers as may be deemed requisite for the purpose of keeping order within the territory of the association, such officers being clothed with the same power, authority and immunities as constables, including the power to enforce obedience to any rule or regulation of the trustees for the preservation of quiet and good order, for the suppression of vice and immiorality, and for the purpose of preventing disturbances at meetings held for religious worship. The sixth section provides that all the real and personal property of the corporation, not exceeding the annual value of five thousand dollars, shall be exempt from assessment and taxation. All the rights, powers amid privileges vested in the Ocean Grove Camp Meeting Association are contained in the provisions of its charter, which we hare referred to. Just which of the rights thus conferred the attorney-general considers to have become vested and beyond the power of the legislature to infringe is not made clear to us by the argument. ■ The acquisition of real and' personal property and the enjoyment thereof is not at all affected by the act creating tire borough of Ocean Grove. The ownership' of works constructed for'the purpose of supplying the lands acquired by the Camp Meeting Association under its charter with water and artificial light is not divested, nor is its title to such other improvements as it has made within the territory attempted to be taken from it and vested in the borough. So far as its governmental functions are concerned—thia.t is, its power to lay out streets, to regulate the traffic thereon, to repair them when repairs may becomle necessary; its right to pass by-laws for the preservation of peace and good order within the territory, and to appoint officers to enforce tire provisions of those by-laws and1 of the general laws of the state passed' for the same purpose; its right to elect or select the officers clothed with authority to exercise these governmental functions—we think it clear that they are 'not beyond the power of the legislature to change, revoke or modify by creating a new municipal agency of the state to take over and exercise them. This was decided by the Supreme Court as early as 1854 in the case of Paterson v. The Society for Establishing Useful Manufactures, 24 N. J. L. 385, and the soundness of the doctrine then promullgated has, so far as our observation goes, never since been challenged. Nor is the right to be partially exempt from taxation one which is vested in the corporation in the sense that it cannot be taken away by subsequent legislation. It was so decided by this court in the ease of Little, Receiver, v. Bowers, 46 Id. 300; S. C. on appeal, 48 7d. 370. In that ease it was declared that, since the passage of the act of February 26th, 18 1-7 (section 4 of our present Corporation act; Comp. Stat., p. 1600), the provision contained therein that the charter of every corporation which should thereafter be granted should be subject to alteration, suspension and repeal, in the discretion of the legislature, was to be considered as embodied in ('very corporate charter thereafter passed unless a purpose to exclude it be perceived; that a provision partially exempting the property of the corporation from taxation, without more, exhibited no such purpose; and that consequently such a provision was repeatable. This declaration has been accepted as settling the law on the question and has been consistently followed both hv the Supreme Court and this tribunal.

As to the remaining contention, namely, that the act is in violation of the constitutional mandate prohibiting the enactment of private, local or special laws regulating the internal affairs of municipalities, we concur in the conclusion reached by the Supreme Court that the statute violates this provision; and have very little to add to what was said in the opinion of that tribunal. Although, as we declared in the case of Miller v. Greenwalt, 64 N. J. L. 722, the legislature is not barred by this constitutional provision from creating a municipality by a special law, it cannot materially differentiate its new creation from the body of municipalities of the same class, in the conferring upon it of governmental powers. In our view, an act is equally special whether it confers upon a single municipality substantial powers in addition to those possessed and enjoyed1 by other municipalities of the same class; or Whether, as to a single municipality, it places substantial restrictions and limitations upon the powers conferred while like powers are enjoyed and exercised by other municipalities of t'ble class free from such restrictions and limitations; or whether it confers upon.'the municipality only some—but not all—of the substantial powers enjoyed and exercised by other municipalities of the same class. That it regulates the internal affairs of such municipality is obvious.

That the restriction contained in the present act upon the power of the borough government to regulate and control the use of the streets within its territorial limits, and to construct new streets therein at its discretion, materially differentiates this borough from the others of the class seems to be practically conceded bvr counsel for the appellant; .but it is argued that this fact does not justify a judicial declaration that the entire statute is a nullity, for the reason that it is the duty of the court, whenever unconstitutional features appear in a statute, to excise them and sustain what is left of the statute when the objectionable feature is separable as a distinct thing from the body of the act, and there is no reason to suppose that the portion thus eliminated constituted an essential motive to the enactment of the statute. The soundness of the abstract proposition is conceded, but the test to be used in determining whether the principle has application! to a, given statute, is this: does it clearly appear that the unconstitutional feature'of the statute did1 not constitute an essential motive to its enactment? Hann v. Bedell, 67 N. J. L. 148; Riccio v. Hoboken, 69 Id. 649. The preamble to the present statute, after reciting that the Ocean Grove Camp' Meeting Association had instituted and established a camp meeting and Christian seaside resort, and was not only a religious institution, but was also exercising the prerogatives and functions of a municipal government, then proceeded as follows: “Whereas the said association is willing to surrender such municipal control, but without violating the religious'integrity of Ocean Grove, and is also desirous of preserving inviolate all those rights appertaining to and included in such religious integrity; and whereas it is deemed advisable to separate the municipal and religious functions except as this act provides * * * and whereas it is the purpose and intent of this act so to do; therefore, be it enacted” &c. The mere reading of these recitals, as it seems to us, demonstrates that one of tbie controlling motives which influenced the legislature in the enactment of the statute under review, wes the preservation in the newly-created borough, among other things, of so much of the religious integrity of the earlier municipality as was exhibited in its action in keeping its streets free from Sunday travel and in preventing- any public highway or boulevard from passing through its territorial limits. Tn this situation the judicial excision of tírese features of the statute would in effect impose upon the people of the state a law which the legislature itself never would have passed. It is hardly necessary to add that in doing so this court would not be exercising a judicial but would be usurping a legislative function.

The judgment under review will be affirmed.

For affirmance — The Cii anciillou, Chief Justice, Teexciiarii, Beugex, Kat.iscii, Iyatzexbacil, White, HepjpenheijiHi:, Williams. Gabdxeb, Aciciikson, JJ. 11.

For reversal—'Hone.  