lege v. State Board of Education, 48 N.J. 501, 518, 226 A.2d 612 (1967). Indeed in our State the judiciary has accepted delegations of legislative power which probably exceed federal experience. Massett Building Co. v. Bennett, 4 N.J. 53, 59-61, 71 A.2d 327 (1950); In re Schragger, 58 N.J. 274, 278-279, 277 A.2d 212 (1971). Hence the federal precedents cannot be discounted upon the thesis plaintiffs advance. Chief Justice Marshall noted that "The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details." Wayman v. Southard, 10 Wheat. 1, 43, 6 L.Ed. 253, 263 (1825). If the line could be drawn, surely it would move in response to the growing complexity of government. For present purposes, we think it enough to ask whether the statute so enhances the executive power as to threaten the security against aggregated power which the separation-of-powers doctrine was designed to provide. We must assume the Legislature found there is no such threat, and we must accept that evaluation unless it is plainly wrong. We cannot say it is. We note that the Governor is limited to rearranging what already exists. He is not empowered to decide what new or different authority should be vested in his branch of government. N.J.S.A. 52: 14C-4(a) provides that the legislative objectives may be accomplished by transfer or abolition of the whole or a part of any agency or its functions; or by consolidation, merger or coordination of agencies or their functions; or by authorization of an officer to delegate his functions. Even within that prescribed area, the statute confines the delegated authority by providing that a reorganization plan may not create a new principal department in the executive branch or abolish a principal department or consolidate two or more of them; or extend the life of an agency; or authorize an agency to exercise a function not then expressly authorized by law; or increase the term of an office. N.J.S.A. 52: 14C-6(a). We need not say a reorganization statute could not go further. We note the limitations in the statute to explain our finding that the statute as it stands is not vulnerable. Discussion Notes 1. Does the presence of an explicit, textual reference to separation of powers seem to influence the Florida court? The New Jersey Court? For a comparison of the Florida and New Jersey approaches see Robert W. Martin Jr., "Legislative Delegations of Power and Judicial Review It was for the legislature to decide whether to delegate the power or to attempt itself to initiate plans of reorganization. The Legislature declared the purposes to be achieved by reorganization plans “may be accomplished in great measure by proceeding under this act, and can be accomplished more speedily thereby than by the enactment of specific legislation." N.J.S.A. 52: 14C-2(b). There being authority to delegate the legislative power, it does not rest with us to quarrel with the legislative decision to make the delegation. Plaintiffs assail the wisdom of certain aspects of the reorganization plan here involved. But the constitutionality of the statute does not turn upon whether a plan is wise or unwise in a judge's view. We cannot condemn the statute because mistakes might be made under its auspices. The responsibility for such policy decisions rests with the other branches of government, and this because of the very doctrine of separation of powers upon which plaintiffs rely. It is well to repeat that while the doctrine of separation of powers is designed to prevent a single branch from claiming or receiving inordinate power, there is no bar to cooperative action among the branches of government. On the contrary, the doctrine necessarily assumes the branches will coordinate to the end that government will fulfill its mission. In re Zicarelli, 55 N.J. 249, 264-265, 261 A.2d 129 (1970), affirmed, 406 U.S. 472, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972). The statute before us is not unique in thus delegating power to the head of another branch. The Congress has provided since 1789 that the federal judiciary shall have the power to prescribe rules of procedure. 28 U.S.C.A. sections 2071, 2072, 2075; 18 U.S.C.A. sections 3771, 3772. The constitutionality of that delegation was readily accepted long ago. Wayman v. Southard, supra, 10 Wheat. at 42-43, 6 L.Ed. at 262-263 (1825). Mention may also be made of N.J.S.A. 2A: 84A-33 et seq., which provides that the State Supreme Court may adopt rules dealing with the admission or rejection evidence, subject to disapproval by joint resolution of the Legislature signed by the Governor, N.J.S.A. 2A: 84A-36. Preventing Judicial Impotence," Florida State University Law Review 8 (Winter 1980): 43. 2. For a case exploring the relationship between legislative guidelines or standards for administrative agency action, on the one hand, and procedural safeguards for agency decisions, on the other hand, see Westervelt v. Natural Resources Comm., 263 N.W.2d 564 (Mich. 1978). Fink v. Cole 302 N.Y. 216, 97 N.E.2d 873 (1951) LEWIS, Judge. An appeal in each of the two proceedings captioned above presents for our decision a challenge to the constitutionality of section 7512 of McKinney's Unconsolidated Laws (Laws 1936, c. 440 section 9-b, added by Laws 1934, c. 310, section 5, as amended) which purports to delegate to The Jockey Club, a private corporation, certain powers which the appellant asserts the Legislature may not delegate within the framework of the Federal and State Constitutions.... Insofar as appears from the records before us The Jockey Club's corporate charter has at no time empowered it to grant licenses of any kind. The only authority for the licensing power exercised by The Jockey Club came with the enactment of section 5 of chapter 310 of the Laws of 1934.... Under authority which had its origin in the statute, L. 1934, ch. 310, section 5, as amd., The Jockey Club, a private corporation for the purpose-as declared by the Legislature-of “. . . maintaining a proper control over race meetings conducted pursuant to section seven of this act [Unconsol. Laws section 7508]" was authorized to "license owners, trainers and jockeys at running races...." Under section 7508 id. the Legislature provided further that "Every such license shall contain a condition that all running races or race meetings conducted thereunder shall be subject to the reasonable rules and regulations from time to time prescribed by the Jockey Club, a corporation organized under the laws of the state of New York. . . ." (Emphasis supplied.) The rules prescribed by The Jockey Club are known as the "Rules of Racing" of which "Rule 34," bearing the caption "Powers of the Stewards of The Jockey Club," provides in part as follows: "34.(a) The Stewards of The Jockey Club shall have power, at their discretion, to grant licenses to Owners, Trainers and Jockeys and to such other persons, exercising their occupations or employed at race meetings as the State Racing Commission may determine to require a license from The Jockey Club; and such Stewards may revoke or suspend such licenses in accordance with the then existing laws of the State of New York. Every such license issued by The Jockey Club shall provide that the licensee shall comply with the Rules and Regulations of the Commission and these Rules of Racing, and that violation thereof may be punished by fine, suspension of the privileges accorded thereby, or revocation of the license. No license shall be issued by said Stewards to a person shown to the satisfaction of said Stewards to be engaged, or to have been engaged in practices detrimental to the best interests of racing, including bookmaking or pool-selling, or to anyone so shown to be or to have been connected with any such person in any such practice, provided that, in cases in which the Stewards shall find that such occupation or connection has ceased for a sufficiently long period of time, they may, in their discretion, issue such license. Nor shall a license be issued by said Stewards to a person so shown to be undesirable or financially irresponsible or otherwise unqualified. "(b) Upon application to the State Racing Commission of a person whose license has been refused or revoked, made within such period as may be prescribed by the then existing laws of the State of New York, such person shall be entitled to a prompt hearing before a joint session of the State Racing Commission and two Stewards of The Jockey Club in accordance with said laws, which joint session, acting as a board, shall take final action thereon. "The State Racing Commission and two Stewards of The Jockey Club at a joint session, and acting as a board, shall have the power to suspend and/or revoke any license granted under Rule 34(a) after giving a licensee a reasonable opportunity to be heard... ." (Emphasis supplied.) It thus appears that for the declared purpose of maintaining a proper control over race meetings within the State, the Legislature by sections 7512 and 7508 of the Unconsolidated Laws (supra) has delegated to The Jockey Club the power to license horse owners, trainers and jockeys at running races and, as an incident to that licensing power and under subdivision (a) of rule 34 of The Jockey Club's "Rules of Racing," the stewards of that club are authorized to grant such licenses "at their discretion." In fact, in the exercise of the broad discretion vested in them in the issuance of licenses-essentially a sovereign power-the stewards are officers of The Jockey Club who are neither chosen by, nor responsible to the State government. They are not sworn as public officers, nor are they removable as such. The respondents rely chiefly upon Grannan v. Westchester Racing Ass'n. 153 N.Y. 449, 47 N.E. 896. There this court ruled that the Westchester Racing Association could lawfully exclude from its track the plaintiff who admitted he had bribed a jockey and had thereby violated one of the association's rules. In that case, however, the Westchester Racing Association was licensed pursuant to statute, L.1895, ch. 570, by the State Racing Commission-a governmental administrative body-rather than by a private corporation such as The Jockey Club. Accordingly, that case can hardly be invoked as authority for a view contrary to that indicated herein. We are told that benefits of great worth to the maintenance of proper control over race meetings and to the improvement of the breed of horses have been derived from action by The Jockey Club. Even assuming that fact we are mindful that “... nothing is more certain than that beneficent aims, however great or well directed, can never serve in lieu of constitutional power." Carter v. Carter Coal Co., 298 U.S. 238, 291, 56 S.Ct. 855, 864, 80 L.Ed. 1160. In our view the delegation by the Legislature of its licensing power to The Jockey Club, a private cor Discussion Notes 1. See also Group Health Insurance of New Jersey v. Howell, 40 N.J. 436, 193 A.2d 103 (N.J. 1963); State Bd. of Chiropractic Examiners v. Life Fellowship of Pennsylvania, 441 Pa. 293, 272 A.2d 478 (1971); Louis L. Jaffe, “Law Making By Private Groups," Harvard Law Review 51 (December 1937): 201. People ex rel. Thomson v. Barnett 344 III. 62, 176 N.E. 108 (1931) We hold that, under the Constitution of Illinois, the General Assembly is the sole depository of the legislative power of the state; that it has no power to delegate its general legislative power, and may not refer a general act of legislation to a vote of the people of the state to decide whether it shall have effect as a law except where the Constitution requires such reference; that the rule against the delegation of legisla Discussion Notes 1. This case is discussed in “Constitutional Law-Delegation of Legislative Power to the Peo The Supreme Judicial Court of Massachusetts, in In re Municipal Suffrage to Women, 160 Mass. 586, 36 N.E. 488 (1894), had taken the same position as Illinois. Justice Oliver Wendell Holmes, Jr., however, filed the following opinion: To the Honorable the House of Representatives of the In reply to your order, I respectfully submit the following answer: poration, is such an abdication as to be patently an unconstitutional relinquishment of legislative power in violation of section 1 of article III of the Constitution of this State which provides: "The legislative power of this State shall be vested in the Senate and assembly.. Even if the Legislature's power to license had been delegated to a governmental agency, the statute now challenged would have to be stricken down for lack of guides and proper standards.... 2. Fink v. Cole and other similar cases are discussed and analyzed in Note, "The State Courts and Delegation of Public Authority to Private Groups," Harvard law Review 67 (June 1954): 1398. See also Note, "Delegation of Power to Private Parties," Columbia Law Review 37 (March 1937): 447. tive power is not violated by vesting in municipal corporations, certain powers of legislation on subjects of purely local concern connected with their municipal affairs, nor by local option laws the application of which to particular localities is made dependent upon their adoption by the voters of such localities, and that the act of June 14, 1929, to amend section 2 of an act to authorize judges of courts of record to appoint jury commissioners, and prescribing their powers and duties, is an unconstitutional delegation of legislative powers, and had no effect to change the Jury Commissioners Act or to authorize the selection of women as jurors. ple," University of Pennsylvania Law Review 80 (November 1931): 129. 2. For the contrary view, see Hudspeth v. Swayze, 85 N.J.L. 592, 89 A. 780 (1914). If the questions proposed to the justices came before us as a court, and I found myself unable to agree with my brethren, I should defer to their opinion, without any intimation of dissent. But the understanding always has been that questions like the present are addressed to us as individuals, and require an individual answer. It is assumed in the questions that the legislature has power to grant women the right to vote in town and city elections. I see no reason to doubt that it has that power. 1. I admit that the constitution establishes a representative government, not a pure democracy. It establishes a general court, which is to be the law-making power. But the question is whether it puts a limit upon the power of that body to make laws. In my opinion, the legislature has the whole law-making power, except so far as the words of the constitutions, expressly or impliedly, withhold it; and I think that, in construing the constitution, we should remember that it is a frame of government for men of opposite opinions, and for the future, and therefore not hastily import into it our own views, or unexpressed limitations derived merely from the practice of the past. I ask myself, as the only question, what words express or imply that a power to pass a law subject to rejection by the people is withheld? I find none which do so. The question is not whether the people of their own motion could pass a law without any act of the legislature. That, no doubt, whether valid or not, would be outside the constitution. So, perhaps, might be a statute purporting to confer the power of making laws upon them. But the question, put in a form to raise the fewest technical objections, is whether an act of the legislature is made unconstitutional by a proviso that, if rejected by the people, it shall not go into effect. If it does go into effect, it does so by the express enactment of the representative body. I see no evidence in the instrument that this question ever occurred to the framers of the constitution. It is but a short step further to say that the constitution does not forbid such a law. I agree that the discretion of the legislature is intended to be exercised. I agree that confidence is put in it as an agent. But I think that so much confidence is put in it that it is allowed to exercise its discretion by taking the opinion of its principal, if it thinks that course to be wise. It has been asked whether the legislature could pass an act subject to the approval of a single man. I am not clear that it could not. The objection, if sound, would seem to have equal force against all forms of local option. But I will consider the question when it arises. The difference is plain between that case and one Discussion Notes 1. May the legislature condition the effectiveness of a law upon the approval at a referendum of an amendment to the state constitution that would remove some limitation on the enactment of such a law? See Ammerman v. Markham, 222 So.2d 423, 426-27 (Fla. 1969). where the approval required is that of the sovereign body. The contrary view seems to me an echo of Hobbes' theory that the surrender of sovereignty by the people was final. I notice that the case from which most of the reasoning against the power of the legislature has been taken by later decisions states that theory in language which almost is borrowed from the Leviathan. Rice v. Foster, 4 Har. (Del.) 479, 488. Hobbes urged his notion in the interest of the absolute power of King Charles I., and one of the objects of the constitution of Massachusetts was to deny it. I answer the first question, "Yes." I may add that, while the tendency of judicial decision seems to be in the other direction, such able judges as Chief Justices Parker, of Massachusetts, Dixon, of Wisconsin, Redfield, of Vermont, and Cooley, of Michigan, have expressed opinions like mine. 2. If the foregoing view of the power of the legislature is right, I am of opinion that the second question also should be answered, “Yes.” I find nothing which forbids the legislature to establish a local option upon this point, any more than with regard to the liquor laws. Under the circumstances, I do not argue this or the following question at length. 3. The act suggested by the third question is open to the seeming objection that it might take a part of their power out of the hands of the present possessors, without their assent, except as given by their representatives. But if, as I believe, the legislature could give to women the right to vote, if they accepted it by a preliminary vote, and could impose as a second condition that the grant should not be rejected by the voters of the commonwealth, I do not see why it might not combine the two conditions into one, although, as a result, the grant might become a law against the will of a majority of the male voters. I answer this question, also "Yes." OLIVER WENDELL HOLMES, Jr. 2. Why would a legislature want to submit a statute providing women with voting rights or the right to serve on juries to a vote of "the people"? 3. Consider the materials in Chapter 9, Section D. |