Pub. Serv. Ry. Co. v. Pub. Utility Com'rs.

89 N. J. L.

75 N. J. L. 557, 562, "must, in the absence of clear evidence to the contrary, be deemed to be based upon facts within the possession of the legislature rendering such legislation proper, if not necessary. See Hopper v. Stack, 40 Vroom 562." And, in State v. Sutton, 87 N. J. L. 192, 193, also a Court of Errors and Appeals decision, a condition that would justify the exercise of the police power, was spoken of as "one of those determinations of fact that the legislature has the right to make for itself when prescribing a police regulation," citing Hopper v. Stack and Lyons v. Morris County, 86 Id. 206. It is this prerogative of the legislative department of the government thus to predicate its exercise of the police power of the state upon facts within its own possession and keeping that renders such power so unamenable to precise judicial definition rather than any inherent difficulty in defining the limits of such power when applied to a given state of facts.

The foregoing remarks, coupled with our discussion of the topic and citation of authorities in the case of Erie Railroad Co. v. Board of Public Utility Commissioners, decided at this term, lead to the conclusion that the provision of the Fielder act drawn under review was within the proper sphere of legislation, and that the order of the utility board brought up by this certiorari, merely carried out the clearly-expressed intent of the legislature. That the state, through its chosen agencies, is not required in such a situation to ascertain the exact quota of contribution to a common danger, and by that standard assign the expense of its elimination, is borne out by the cases cited by counsel for the defendant. Under such circumstances, the province of the judicial office is thus stated by Chief Justice Beasley in Douglass v. Essex County, 38 N. J. L. 214: "Where that which is directed to be done is within the sphere of legislation, and the terms used clearly express the intent, all reasoning derived from the supposed inconvenience, or even absurdity of the result, is out of place. It is no province of the courts to supervise legislation and keep it within the bounds of propriety and common sense, so that even if in this case it could be demonstrated that the regulation in question was incommodious, or even hurtful, an

appeal for relief to the judicial power would be utterly in vain." This is stronger language than is called for by the circumstances of the present case, but the rule of law to which it leads up cannot be too strongly stated, or too rigidly observed if the relative spheres of the legislative and judicial departments of the government are to be kept separate in obedience to the constitutional mandate.

The order of the utility board brought up by this writ is affirmed, with costs.

NELSON STARK ET UX. v. MARK M. FAGAN.

Argued February 15, 1916-Decided June 8, 1916.

Section 15 of the act for the settlement and relief of the poor (Pamph. L. 1911, p. 390), requiring certain relatives of any indigent person to provide relief for such person, is constitutional.

On certiorari.

Before Justices GARRISON, TRENCHARD and BLACK.

For the prosecutor, Arthur H. Mitchell.

For the defendant, Thomas J. Brogan.

The opinion of the court was delivered by

GARRISON, J. This writ brings up for review an order of the juvenile court of Hudson county directing the prosecutors, the grandparents of Pierce Stark, to pay a weekly sum for his maintenance as an indigent infant.

The proceedings are under the act for the settlement and relief of the poor (Revision of 1911, Pamph. L. 1911, p. 390), and it is not contended that this act does not apply.

The contentions are, first, that the provisions of this act were not complied with. We think that they were in all essential respects.

It is further contended that the provision of section 15 of the act, in so far as it affects grandparents, is unconstitutional. We think that this is not so.

The argument that such requirement is not within the police law, or the taxing laws, and that it is an attempt to transmute a purely moral obligation into a legal one are aside from the mark. The statutory requirement rests upon an imperfect legal obligation recognized at common law; such obligations require statutory aid to render them enforceable, but do not derive their obligation from such statutes. The ability of a married woman to recover damages for the alienation of her husband's affections is a modern illustration in point. Sims v. Sims, 79 N. J. L. 577.

This natural obligation was recognized and enforced by the statute 43 Eliz., c. 2, by which father and mother, grandfather and grandmother of poor, impotent persons were required to maintain them as the Quarter Sessions should direct.

Blackstone gives the basis on which the liability rested at common law (1 Bl. Com. 448), and in 30 Cyc. 1122 the subject is discussed and the American cases cited.

In New Jersey, at a very early period, the obligation was a recognized one, for, in Kiser v. Overseers of the Poor (1805), 3 N. J. L. 5, an order of the Quarter Sessions on a grandfather to support his three grandchildren was set aside. solely on the ground that he had had no notice of the proceeding before the Sessions.

The act is not void for unconstitutionality.

The order brought up by the writ is affirmed.

RICHARD E. HARRIS, RELATOR, v. SAMUEL J. CORKER.

Submitted March 16, 1916-Decided June 6, 1916.

Chapter 365 of the laws of 1915 (Pamph. L., p. 677) is special legislation regulating the internal affairs of counties and is unconstitutional.

On quo warranto.

Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and BERGEN.

For the relator, Campbell & De Turck.

For the defendant, Clarence Mabie, Waldron M. Ward and John R. Hardin.

The opinion of the court was delivered by

SWAYZE, J. The relator claims the office of custodian of the Bergen county court house by virtue of an election pursuant to chapter 365 of the laws of 1915. This act applies only to counties having between one hundred and two hundred thousand inhabitants, where a court house has been erected in pursuance of the act of March 19th, 1901, which has not adopted or does not hereafter adopt the Civil Service act of 1908. This is a triple classification. The act does not apply to all counties having between one hundred and two hundred thousand inhabitants; nor to all counties that adopt the act of March 19th, 1901; nor to all counties that fail to adopt the Civil Service act. It seems likely that the three qualifications were united in order that the act might apply to Bergen county alone. Such a classification has already been condemned. State v. Riordan, 75 N. J. L. 16.

It is argued by the relator that he may claim a position under the act of 1910. Comp. Stat., p. 521, pl. 167. The answer is: (1) his information claims an office, not a position;

Hendee v. Wildwood, Del. Bay, &c., R. R. Co. 89 N. J. L.

(2) quo warranto is not the proper remedy if in fact it is a mere position. We cannot sustain the plaintiff's claim to something not within the pleadings, nor can we on quo warranto adjudicate the claim of the defendant to a mere position. If the relator's claim that the place is a mere position were correct, nothing could be done in this present proceeding. We find there has been no ouster and there must be judgment for the defendant.

WILLIAM C. HENDEE, ADMINISTRATOR, v. WILDWOOD, BAY AND SHORT LINE

DELAWARE

RAILROAD

COMPANY.

Argued February 16, 1916-Decided May 13, 1916.

Where plaintiff's general employment was that of running a train and his special employment was as fireman, and there was evidence to show that in emergencies firemen were accustomed to perform the duties of a brakeman, it was too narrow a definition of the word "employment" to hold that a fireman, acting in an emergency in the capacity of brakeman, was a volunteer, since such duties were a part of his general employment of running the train.

On certiorari to Cape May Pleas.

Before Justices SWAYZE, PARKER and KALISCH.

For the plaintiff, William C. French and Samuel T. French.

For the defendant, J. Fithian Tatem.

The opinion of the court was delivered by

SWAYZE, J. The facts found by the trial judge are as follows: The petitioner's decedent, Harry C. Hendee, was employed by the Wildwood, Delaware Bay and Short Line